Jump to Navigation
Jump to Content

New York, City of v. Anglebrook Ltd. Partnership

ELR Citation: 26 ELR 20122
Nos. No. 94 Civ. 7215 (BDP), 891 F. Supp. 900/40 ERC 1813/(S.D.N.Y., 01/03/1995) notice requirements

The court holds that a plaintiff city's notice letter complied with the notice requirements of §505(b)(1)(A) of the Federal Water Pollution Control Act (FWPCA) and the regulatory notice requirements set forth in 40 C.F.R. §135.3(a). The court first holds that the city's allegations that a developer's stormwater pollution prevention plan (SWPPP) for a golf course development project violates FWPCA §402 and thereby violates the state pollution discharge elimination system (SPDES) general permit stated a FWPCA violation claim. Not all violations of §505(f) require a discharge of a pollutant as a predicate to liability. Moreover, the statutory and regulatory focus on the enforcement value of an SPDES permit indicates that violations of the Act must be determined in light of the conditions of the permit, not the discharge. The court rejects the developer's argument that a citizen suit may not be based solely on anticipated violations of the Act, because the city claims a present violation—a flawed SWPPP—that is an actionable violation of an effluent standard under §505(f)(6). Next, borrowing the approach of the Clean Air Act in deciding whether citizens have stated a claim under §505, the court holds that the city alleges a specific permit violation and has provided a description with some particularity of the respects in which the developer has not complied with the permit. The court holds that the city's notice letter complied with the notice requirements of §505(b)(1)(A) and the regulatory requirements set forth in 40 C.F.R. §135.3(a). The notice letter gave notice of the alleged violation because it identified five specific categories of standards required under the permit and allegedly violated; the city's assertion that the SWPPP violated the general permit is an adequate statement of the activity that constitutes the violation; the letter identifies the developer as the person responsible for the alleged violation; the letter adequately describes the location of the alleged violation; the letter provides adequate notice of the date of the violation; and the letter provides the name, address, and telephone numbers of the city and its counsel.

[A subsequent decision in this litigation is published at 26 ELR 20126.]

Counsel for Plaintiff
Philip M. Bein
New York City Law Department
Office of the Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303

Counsel for Defendants
Henry M. Hocherman
Shamberg, Marwell, Cherneff, Hocherman, Davis & Hollis
55 Smith Ave., Mt. Kisco NY 10549
(914) 666-5600